from the surprised,-but-happy dept

Nearly two years ago, we wrote about how Aaron Tobey was suing the US government after he was detained by the TSA for trying to go through airport security without his shirt on, but with a paraphrased version of the 4th Amendment on his chest:

At the time, I figured his case had little chance of succeeding. For reasons that don't make much sense, the courts have given the TSA an amazing amount of deference as long as they keep claiming something along the lines of "but we're all going to die!!!!!!" before defending any and every action to violate our basic privacy rights. However, it turns out I was wrong. Because, you see, the 4th Amendment might not matter any more, but the First Amendment is still important. And the court saw this as a clear attack on his attempt to speak freely:

Here, Mr. Tobey engaged in a silent, peaceful protest using the text of our Constitution—he was well within the ambit of First Amendment protections. And while it is tempting to hold that First Amendment rights should acquiesce to national security in this instance, our Forefather Benjamin Franklin warned against such a temptation by opining that those ‘who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.’ We take heed of his warning and are therefore unwilling to relinquish our First Amendment protections—even in an airport.

The ruling hit back on the claims by the TSA that the detention made sense because Tobbey's actions were "bizarre."

Appellants contend that Mr. Tobey has not pled a cognizable First Amendment claim because their actions were "reasonable" given Mr. Tobey’s "bizarre" and "disruptive"
conduct....

Even conceding that Mr. Tobey’s behavior was "bizarre,"
bizarre behavior alone cannot be enough to effectuate an
arrest. If Appellants caused Mr. Tobey’s arrest solely due to
his "bizarre" behavior, Appellants’ cannot be said to have
acted reasonably. This is especially the case given that the
First Amendment protects bizarre behavior

The court also pushes back on the claims of "disruption," noting that the TSA seems to say that removing clothes itself is disruptive, but the court points out that there's an awful lot of clothing removal that happens at TSA checkpoints, so it is not obviously disruptive (though it leaves open the possibility of more evidence of disruptive behavior by Tobey).
This was an appeals court panel, overturning a lower court decision against him. It's worth noting that the panel (a standard 3 judge panel) included one dissenter, who bizarrely and ridiculously argued that, not only do you give up your First Amendment rights at the airport, you do so because the TSA needs you to shut up so it can find the real terrorists. I'm not joking:

Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene.

How does one become a judge at the appellate level when arguing that you have different free speech rights during airport passenger screening because you shouldn't distract the TSA agents? That's quite an incredible statement.

Either way, the case still has a long way to go. This part just sends it back to the lower court to permit the case to move forward on First Amendment grounds.

Circular logic WIN!

"But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene."

Your Honor, we had to harrass Mr. Tobey, not because of any wrongdoing but because his actions made have to leave our duties in order to go harrass him.

Re: Re: Circular logic WIN!

Really?

a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would

The commotion caused by the TSA acting like jackasses is the fault of the guy who's rights they were violating because he should have known they would violate his rights. Nice.

I wonder if this judge would agree that it is his fault if we send SWAT to raid his house because his ruling is bizarre and it is ok that we do so because he should have known we would send SWAT after him for a crazy ruling and something bad could happen while SWAT is out arresting him that they may have possibly prevented.

Re: Really?

The logic would get Kim Dotcom send to USA:

"Kim Dotcom was responsible for disrupting activity and caused the need for a firm response from the kiwi police. USA responded as any US citizen would have hoped they did by demanding him extradited!"

Re: Really?

It actually sounds like the cliche apologetic abused spouse: "It's my fault that he beats me because I make him angry."

If the TSA gets distracted by harmless people standing up for their rights, then...Oh, right. People standing up their rights aren't harmless. Only terrorists stand up for their rights. I remember now.

The dissenting Judge should be removed from the bench.
Following the logic provided
we should not have cars... nefarious people might use them in bank robberies.
we should not have pants... nefarious people might use them to hide things.
we should not have children... nefarious people might do something to them.

Or we can just sign the Judge up for many flights so that the bench can have a first hand account of how stupid that response is... if unwilling we should have the Judge arrested for failing to allow his rights to be stomped underfoot.

"But Tobey’s antics diverted defendants from their passenger-screening duties for a period"

Wow. So it is this judges official opinion that the TSA agents are so poorly trained and so unprofessional that they would be unable to keep their eyes off those exposed abbs long enough to carry on with their actual work. Be afraid, citizens, be very afraid.

Re:

Re:

Umm - so terrorists are simply hanging about at airports, waiting for someone to walk through without his shirt so that they can spring into action?

They might now. We need to purchase some kind of machine that will screen for it. Just like we did to find liquids and explosive shoes. Eventually the terrorists will try the same unsuccessful thing twice.

Re: The answer is simple

Re: The answer is simple

You realize that your entire protest plan is based on "sheep" not standing in line and simply not travelling.

Considering your disdain for them, this is fairly surprising.

Or perhaps all the money you're not spending on airline tickets is going directly to organizations that are out lobbying the politicians to fix this situation? No? Then no one is even listening to you. The only thing you've managed to accomplish is a self-enforced travel restriction.

Re: The answer is simple

Remove the power of the TSA by not flying

Listen here pirate Applegate. You are taking food out of the mouths of TSA agents everywhere. Every non-flyer using some other form of transportation is clearly a "lost-fondling" opportunity and we need to charge you and Google a tax to pay the wages of these poor TSA agents before the pseudo-rape industry is destroyed by your actions.

Re: The answer is simple

Here we have a catch 22. The TSA currently has no competition and thus no incentive to improve. Boycotting flying could lead to privatization of airport security, which would most certainly lead to a better experience. However, getting to certain parts of the world (or country) is made significantly more inconvenient without the use of airplanes, making boycotting impossible for many.

Re: The answer is simple

Exactly! I haven't flown since 2005, and if people are willing to put up with the TSA fiasco in the first place, then they should probably realize they have no rights in these concerns. If they stop flying, this transportation issue will cease to be a problem, right?

Re:

Re: Re:

Did you forget a sarc-mark or something? I'm not sure if you are actually serious.

Do you think you can stand on a soap box and give a speech just the same whether you're in the park or at the security checkpoint at the airport? Of course the rules change depending on your location. Might want to google "time place manner restriction first amendment." Mike is delusional and frankly 100% wrong to suggest otherwise.

Re:

How is this disruptive?

Perhaps i'm missing something. So a bare-chested guy with some writing goes through security. On his chest is an excerpt from the bill of rights. How is this a problem? how could it possibly have taken more than 1 TSA agent to realize that the prose on his chest wasn't threatening to the security of the airport, or his upcoming flight? It wasn't a bomb threat, nor a promise to hijack. What if it was written on a tee shirt, instead of his chest. would that have been okay?

I imagine that due to the popularity of tattoos, there are individuals on just about every flight that have some kind of writing on their bodies. OMG, the world is full of TERRORISTS!

Re: How is this disruptive?

Unfortunately, these days in the US, the Constitution is considered a threat to those in power, TSA included, due to how often their actions are in direct violation of it.

You're right when you say it would have only taken one agent a few seconds to realize he wasn't posing a threat to the airport/airlines, but that wasn't the real reason they threw the book at him. What they were actually going after him for was the threat he posed to their authority.

The court also pushes back on the claims of "disruption," noting that the TSA seems to say that removing clothes itself is disruptive, but the court points out that there's an awful lot of clothing removal that happens at TSA checkpoints, so it is not obviously disruptive (though it leaves open the possibility of more evidence of disruptive behavior by Tobey).

Response to: gorehound on Jan 28th, 2013 @ 1:53pm

Once again the general public is totally clueless regarding the work that terrorists regulary do in regards to screening checkpoints. NO IDEA.
How about next you walk right to the gate, no screening, no law enforcement, no security. Good luck

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience." - C. S. Lewis